The norms state that only heterosexual foreigner couples married for two years and those whose countries recognize surrogacy, among other clauses, are eligible for a medical visa to India. The rules thus exclude single foreigners or gay couples from having an Indian woman bear their child.

One section of comments accuses India of being homophobic and discriminatory. Others rationalise the new norms pointing out that only a few countries around the world legally recognise same-sex marriage and adoption and the rules will protect children born in India from landing up in legal trouble in countries which don’t.

The debate is on the table….

SOME PERCEIVE THE NORMS AS DISCRIMINATORY

The ministry’s guidelines have evoked an emotional response from an Israeli citizen Yonatan Gher whom I had met in 2008. He alongwith his same-sex partner Omer had a baby through an Indian surrogate woman and today claim to make a happy family portrait. “In allowing this process, India projected to the world two of its key values: The value of equality – As a country who elected a female head of government before all others…The value of child-birth – That the family, and the value of child-birth, are a central and fundamental right which must be available to all,” he wrote in an open letter.

His letter appeals to the home ministry to reconsider its recent directive disallowing gay surrogacy for foreigners. “We learned with great concern the current attempt to change the regulations for foreign couples seeking surrogacy in India,” he writes echoing many from the LGBT community in saying that the decision creates discrimination which constitutes a violation of human rights. “It is a decision which says to us, and to the great many same-sex parents and their children, that we are unfit parents. What conversation must we have now with Evyatar (our son)?” he asks.

A letter gathering signatures from gynaecologists across India cites a 2008 judgment by the Supreme Court of India in the Baby Manji Yamada vs Union Of India & Anr case on surrogacy saying it observed that intended parents may be a single male or a male homosexual couple. Then why should the home ministry object to gay parenting by foreigners, they question.

Ashok Row Kavi chairperson of Humsafar trust says irrespective of his personal views on the institution of marriage or parenthood, gay persons should have the same rights as heterosexual persons do. If foreign heterosexual couples can turn to India for surrogacy why not homosexuals? He points out that India is waiting for a final apex court judgment on decriminalising homosexuality and believes that other provisions on family issues would then follow. Gay rights after all are still nascent and evolving in India.

OTHERS ASK WHY INDIA SHOULD BE A SURROGACY HUB FOR FOREIGNERS

Those defending the home ministry’s move hold forth their own views. A ministry official earlier told me that the guidelines were in keeping with the fact that gay marriages aren’t legally recognized in India currently. Gay surrogacy for Indians itself falls into a grey zone in the absence of a law. Expecting liberal norms for foreigners in such an environment, may be expecting too much.

Health activists question why India should encourage gay surrogacy for foreigners seeking babies given that many of their home countries themselves don’t recognize gay marriages or grant gay couples adoption rights. As of now, gay marriages are legal only in a handful of countries including the Netherlands, Norway, Sweden, Canada, Spain and South Africa and adoption in about 14 countries. This too is as recent as 2001 when Netherlands granted same-sex couples the right to marry. France for instance, is right now in the throes of hearing a bill which would legalise same-sex marriage as well as adoption, but it has drawn much opposition. The home ministry’s norms would then protect Indian babies from being taken to foreign countries where laws do not legally recognize their parents.

There are readers who also criticise the practice of surrogacy itself questioning why poor Indian women should rent their wombs for foreigners, but that argument isn’t specific to gay parenting alone. It is made in the context that commercial surrogacy isn’t allowed in many of foreign countries including Germany, France, Japan and United Kingdom from where tourists seek Indian babies. The argument is that poor, vulnerable women in India then are exposed to exploitation through such arrangements.

Let us assume the diktat is based more on protecting the Indian-born baby than judging the parents sexuality. Even in that backdrop, there seems to be a lack of clarity about the new guidelines. Not knowing the date from when they come into force, many foreigners/gay couples who are already midway through surrogacy cycles are worrying about their fate and the medical fraternity is already petitioning the authorities. The ministry should perhaps hold its horses, have more public dialogue and evaluate concerns being raised before enforcing the new norms. How about also coordinating with the health ministry which already has a legislation on surrogacy that is long pending?

DISCLAIMER : Views expressed above are the author's own.

Author

Madhavi Rajadhyaksha is a journalist now working on governance and policy issues. She leads advocacy initiatives & strategic partnerships at Centre for Decentralised Local Governance, Avantika Foundation, a Bangalore-based not-for-profit organisation that works on building the institutional capacity of rural and urban local self-governments. She was previously Manager-Advocacy with Janaagraha Centre for Citizenship & Democracy & an Assistant Editor with The Times of India. Madhavi writes on a wide spectrum of development-related issues. She strayed into journalism charged with idealism to quench her curious mind and love for writing. After seven years in the news industry, she moved on to pursue her interest in policy research, currently her mainstay. She is formally trained in development studies and journalism.

Madhavi Rajadhyaksha is a journalist now working on governance and policy issues. She leads advocacy initiatives & strategic partnerships at Centre for . . .

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Madhavi Rajadhyaksha is a journalist now working on governance and policy issues. She leads advocacy initiatives & strategic partnerships at Centre for Decentralised Local Governance, Avantika Foundation, a Bangalore-based not-for-profit organisation that works on building the institutional capacity of rural and urban local self-governments. She was previously Manager-Advocacy with Janaagraha Centre for Citizenship & Democracy & an Assistant Editor with The Times of India. Madhavi writes on a wide spectrum of development-related issues. She strayed into journalism charged with idealism to quench her curious mind and love for writing. After seven years in the news industry, she moved on to pursue her interest in policy research, currently her mainstay. She is formally trained in development studies and journalism.

Madhavi Rajadhyaksha is a journalist now working on governance and policy issues. She leads advocacy initiatives & strategic partnerships at Centre for . . .